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The Quiet Arm of the Law

For better or worse, the 2007-2008 term of the U.S. Supreme Court, which got underway in October, is not likely to produce as big a splash for the waste industry as did the previous term. Last April, the high court ruled that local government flow control ordinances, which treat in-state private business interests exactly the same as out-of-state ones, do not discriminate against interstate commerce. [United Haulers Ass'n. v. Oneida-Herkimer Solid Waste Management Authority, 127 S.Ct. 1786.]

Still, besides the headline-grabbing lethal injection and voter ID cases, the current term will produce a fistful of labor and employment law decisions that are likely to affect waste businesses, their suppliers and customers.

Before its summer recess, the justices voted to accept two cases involving the Age Discrimination in Employment Act of 1967 (ADEA). The act protects certain job applicants and employees 40 years of age and older from discrimination in hiring, promotions, discharges and compensation, as well as the terms of employment. The ADEA is enforced by the federal Equal Employment Opportunity Commission. Another case docketed last spring for argument this term involves 401(k) plans and employee remedies under the Employee Retirement Income Security Act.

As if these cases were not enough, the court added two more age discrimination matters plus a retaliation claim arising out of a race-based job bias case.

In Kentucky Retirement Systems v. EEOC [Docket No. 06-1037], the justices will consider whether any use of age as a factor in a retirement plan is “arbitrary,” which would render the plan facially discriminatory under the ADEA. A federal appeals court found discriminatory a plan that disqualified employees from receiving disability retirement benefits when they become disabled after reaching retirement benefit age, but are still working.

Meanwhile, in Gomez-Perez v. Potter [Docket No. 06-1321], the high court will decide if the ADEA's federal-sector provision prohibits retaliation against employees who complain about age discrimination. The act, which applies to federal employees, has no express provision on retaliation claims. Predictably, the Bush Administration is taking the position that absent specific language in the law, no retaliation claim can be made.

In CBOCS West Inc. v. Humphries [Docket No. 06-1431], the petitioner, which operates Cracker Barrel restaurants, could be held guilty of retaliation under the federal Civil Rights Act, [42 U.S.C. § 1981]. The high court has ruled that Sec. 1981 of the act generally prohibits racial discrimination in the making and enforcing of contracts. But, a murky area remains with so-called “post-formation conduct,” such as harassment and retaliation, that occurs after employment begins. Employment law experts say that Sec. 1981 has been equated with Title VII of the Civil Rights Act of 1964, which has an anti-retaliation provision. However, the appeals courts differ widely on whether a retaliation claim exists under the section.